Enlarge /. A model of the pirate ship Queen Anne & # 39; s Revenge at the North Carolina Museum of History.
A state government that violates a person's copyright law need not worry about being sued, the Supreme Court ruled on Monday. The Supreme Court ruled that federalism trumped copyright law and effectively granted states a free passport.
The case brought a North Carolina videographer, Frederick Allen, against the state of North Carolina. The state was the rightful owner of a famous shipwreck, the Queen Anne & # 39; s Revenge. It was the legendary pirate Blackbeard's flagship until it ran aground off the North Carolina coast in 1718. A company discovered the wreck in 1996 and received an order from the state to carry out salvage work. The company commissioned Allen to document these efforts with photos and videos.
Allen has spent more than a decade documenting the recovery operation and has maintained copyright protection for his work. But North Carolina posted some of its photos on its website without permission. Eventually, the state agreed to pay everyone $ 15,000 in compensation. But then North Carolina published his work online a second time without permission and sued Allen.
The state of Tar Heel argued that Allen's lawsuit should be dismissed on the principle of sovereign immunity. Since the 1990s, a number of Supreme Court rulings have severely restricted individuals' ability to sue state governments.
The most immediately relevant precedent was a 1999 ruling that individuals could not sue states for patent infringement. Given the close connection between copyright and patent law, it wasn't a big leap for the Supreme Court to find that the same logic applies to copyright lawsuits.
The 1999 Supreme Court patent ruling was decided by a close 5-4 vote, with the Court's five Conservatives expanding federalism over the objections of the Court's four Liberals. Two of these liberals, Stephen Breyer and Ruth Bader Ginsburg, are still on trial, but on Monday they did not contradict the 1999 ruling. They still did not agree with the ruling, they wrote in a consensus statement, but they considered it binding precedent. All nine judges ultimately voted – some reluctantly – to protect states from liability for copyright.
Misconduct can lead to a crackdown
So does this decision mean that states have a blank check to violate copyright law? In the short term, the answer seems to be yes. If North Carolina started organizing unlicensed Pirates of the Caribbean shows across the state, Disney couldn't help it.
In the unlikely event that states openly violate copyright law, Congress may be able to pass a new law that enacts the constitutional review.
The 14th amendment adopted after the civil war empowers Congress to protect individuals from states that violate their rights. Allen argued that it gave Congress the power to protect people from state copyright infringement. This is exactly what Congress tried to do when it passed a law in 1990 that empowered individuals to sue states for copyright infringement.
However, the Supreme Court ruled that this 1990 law was not passed after the 14th amendment. One reason was that the congress did not pose a systematic problem with states that violated human rights. A study commissioned by Congress before the law was passed found only a dozen or so examples of states that violate copyright laws. According to the court, this poor evidence of a state violation meant that it was not a serious problem enough to justify an impact on state sovereignty.
However, if a violation of state copyright becomes a widespread problem, the analysis can change. In a world where states routinely and intentionally infringe human rights, a law that allows private lawsuits against states could be justified by the 14th amendment.
While states are technically immune to copyright lawsuits, the practical implications of this decision can be limited. There is no evidence that government officials are interested in systematically violating people's copyrights. And if a state started to routinely violate copyright law, Congress could pass a new law that allows private lawsuits, and the courts would be more likely to uphold it.